List of prominent cases argued by Floyd Abrams
Encyclopedia
Floyd Abrams
Floyd Abrams is an American attorney at Cahill Gordon & Reindel. He is an expert on constitutional law, and many arguments in the briefs he has written before the United States Supreme Court have been adopted as United States Constitutional interpretative law as it relates to the First Amendment...
most influential and famous cases.
As an advocate of the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
, Abrams' career has put him in a class of prominent legal scholars who have shaped American understanding of fundamental rights found in the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. That work is documented here. In his 2005 book Speaking Freely, he outlines his knowledge of and perspective on the cases below. In this memoir, Abrams states this collection of cases showcases the work people have put into free speech in the United States.
In his review of the book, Lee Levine
Lena Levine
Lena Levine was an American psychiatrist and gynecologist. She was a pioneering figure in the development of both marriage counseling and birth control. She was a close colleague of Margaret Sanger...
wrote "that the modern history of the freedom of the press in this country is intimately associated with the career and work of Floyd Abrams." His career matured in the late 1960s, right after the Supreme Court decided New York Times Co. v. Sullivan
New York Times Co. v. Sullivan
New York Times Co. v. Sullivan, 376 U.S. 254 , was a United States Supreme Court case which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel; and hence allowed free reporting of the...
(1964). He has worked on the Pentagon Papers
Pentagon Papers
The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...
case and Branzburg v. Hayes
Branzburg v. Hayes
Branzburg v. Hayes, 408 U.S. 665 , was a landmark United States Supreme Court decision invalidating the use of the First Amendment as a defense for reporters summoned to testify before a grand jury. The case was argued February 23, 1972 and decided June 29 of the same year. The reporter lost his...
(1972), to Landmark Communications v. Virginia (1978) and Smith v. Daily Mail Publishing Co. (1979), to Nebraska Press Association v. Stuart (1976). He has defended numerous clients, including the Brooklyn Museum of Art from Rudolph Giuliani over the Sensation exhibition
Sensation exhibition
Sensation was an exhibition of the collection of contemporary art owned by Charles Saatchi, including many works by Young British Artists, which first took place 18 September – 28 December 1997 at the Royal Academy of Art in London and later toured to Berlin and New York...
, NBC
NBC
The National Broadcasting Company is an American commercial broadcasting television network and former radio network headquartered in the GE Building in New York City's Rockefeller Center with additional major offices near Los Angeles and in Chicago...
from Wayne Newton
Wayne Newton
Wayne Newton is an American singer and entertainer based in Las Vegas, Nevada. He performed over 30,000 solo shows in Las Vegas over a period of over 40 years, earning him the nicknames The Midnight Idol, Mr. Las Vegas and Mr. Entertainment...
, and Al Franken
Al Franken
Alan Stuart "Al" Franken is the junior United States Senator from Minnesota. He is a member of the Minnesota Democratic-Farmer-Labor Party, which affiliates with the national Democratic Party....
from a trademark lawsuit from Fox News Channel
Fox News Channel
Fox News Channel , often called Fox News, is a cable and satellite television news channel owned by the Fox Entertainment Group, a subsidiary of News Corporation...
over the use of the phrase "Fair and Balanced" in the title of his book.
New York Times Co. v. United States
Landmark Communications v. Virginia, 435 U.S. 829 (1978)
In his memoir Speaking Freely, Abrams states this was the first case he argued by himself before the Supreme Court. He states that he devoted most of their preparation for the case with three overlapping issues, "ones that have consumed my attention in every later Supreme Court argument as well." First was jurisprudential: What rule of law would they urge the Court to adopt? What would be its effect as stare decisisStare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
and its impact on the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. The Second Question was tactical: Justices are known for taking up the 30 minutes of allotted argument time with question-and-answer sessions; Abrams felt he needed to figure out his core message. What did he want to get across in as little time as possible? The Third Question was what the court might ask that would be exceptionally difficult to respond to, and what should those responses be?
Background and procedural history
Abrams represented Landmark CommunicationsLandmark Communications
Landmark Media Enterprises LLC is a privately held media company headquartered in Norfolk, Virginia specializing in cable television, broadcast television, print publishing, and internet publishing...
, which owned the Norfolk Virginian-Pilot
The Virginian-Pilot
The Virginian-Pilot is a daily newspaper based in Norfolk, Virginia, and serving the Hampton Roads metropolitan area, southeastern Virginia, the Eastern Shore of Virginia, and northeastern North Carolina. The flagship property of Landmark Media Enterprises, The Pilot is Virginia's largest daily...
. Landmark would be the first case Abrams argued before the Supreme Court by himself. The Pilot had reported on October 4, 1975, that Judge H. Warrington Sharp, who sat on the Juvenile and Domestic Relations Court, was under an investigation by a judicial fitness panel. They were deciding whether or not to begin disciplinary proceedings against Sharp. Under Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
statute, each complaint against a judge was to be reviewed in secret; it would be announced only if deemed serious enough to require a public hearing. All states had confidentiality requirements to avoid use of the disciplinary inquiry as retribution against a judge; however, only Virginia and Hawaii provided for criminal penalties for disclosure.
There was a quick trial and conviction of the publisher of a misdemeanor and $500 fine. Landmark appealed to the Supreme Court of Virginia
Supreme Court of Virginia
The Supreme Court of Virginia is the highest court in the Commonwealth of Virginia. It primarily hears appeals from the trial-level city and county Circuit Courts, as well as the criminal law, family law and administrative law cases that go through the Court of Appeals of Virginia. It is one of...
, which affirmed the conviction by 6-1. The court concluded that the "requirement of confidentiality in Commission proceedings" served three purposes: 1. protection of the judges reputation; 2. protection of public confidence in the judicial system; and 3. protection of complaintants and witnesses from possible recriminations.
Arguments
Abrams wrote that his primary argument was straightforward: The newspaper published a true account, had not obtained the information illegally, and the alleged offense was simply reporting a complaint about how a public official performed his civic role. In his brief, Abrams argued that the case raised "anew a question which penetrates to the core of our concept of self-government: whether the press may be punished for printing the truth about a public official with his public duties.Assistant Attorney General James Kulp defended the Virginia Supreme Court opinion with the above-mentioned three reasons for the statute. Justice Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
questioned Kulp about whether the case was really about not criticizing public officials, a Constitutional right, and asked whether he would defend a statute calling for confidentiality for protection of the judge. "No, sir", responded Kulp. "I think the cases from this Court have been clear in that respect, that, in other words, a judge, as any public official, may certainly be criticized, the administration of justice may be criticized, and we don't have any argument about that." White said if that was so, then his arguments about protection the judiciary and the system held no weight. Kulp agreed.
Virginia's time before the Court dealt with the scope of the statute. Chief Justice Warren Burger asked Kulp whether if a lawyer held at a press conference handed a copy of a complaint he filed with the commission to the press, that it would violate the statute; but if he made the statement public but did not file the charges, then First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
protection would be granted? Kulp reluctantly agreed.
Abrams declined his rebuttal time, confident in Landmark's victory.
- "During one exchange, Justice William H. Rehnquist asked a question for which Mr. Abrams said he was "totally unprepared", but Justice Potter StewartPotter StewartPotter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
came to his rescue. Of all the justices, Mr. Abrams found Justice Byron R. White the most unnerving. White "invariably asked questions that were both pointed and powerful", he recalls, and Mr. Abrams never once "had the sense that anything I said pleased him." He confides that during oral argument he often felt like a mouse with "a tormenting cat." Nonetheless, he won a unanimous victory."
- "It had been quite an introduction for me to arguing for a complete thirty minutes in the Supreme Court: fifty-four judicial questions and comments. Years later, when I saw Albert BrooksAlbert BrooksAlbert Lawrence Brooks is an American actor, voice actor, writer, comedian and director. He received an Academy Award nomination in 1987 for his role in Broadcast News...
play a television journalist in Broadcast NewsBroadcast News (film)Broadcast News is a 1987 romantic comedy-drama film written, produced and directed by James L. Brooks. The film concerns a virtuoso television news producer , who has daily emotional breakdowns, a brilliant yet prickly reporter and his charismatic but far less seasoned rival...
who perspired so much when on the air that his shirt looked like he had just returned from a swim, I wondered if I had presented the same appearance after my Landmark argument." Floyd AbramsFloyd AbramsFloyd Abrams is an American attorney at Cahill Gordon & Reindel. He is an expert on constitutional law, and many arguments in the briefs he has written before the United States Supreme Court have been adopted as United States Constitutional interpretative law as it relates to the First Amendment...
.
Holdings and Influence
The Court held unanimously in favor of LandmarkLandmark Communications
Landmark Media Enterprises LLC is a privately held media company headquartered in Norfolk, Virginia specializing in cable television, broadcast television, print publishing, and internet publishing...
. Chief Justice Burger wrote the opinion for himself and the other five members (Justices Brennan and Stevens recused themselves). The Court did not adopt Abrams's categorical approach (all truth reporting in reference to public duties was insulated from criminal sanctions by the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
). However, the Court rejected the argument that these interests were sufficient grounds for criminal sanctions on nonparticipants in proceedings.
In its conclusion, the Court wrote: "the [clear and present danger] test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil as well as its likelihood against the need for free and unfettered expression."
- "Perhaps most satisfying to me, the Court not only questioned the relevance of the clear-and-present danger test to Landmark's claims...but noted, in language frequently quoted by the Supreme court thereafter, that it was insufficient for the Virginia Supreme Court simply to defer to the legislative judgment that there was some sort of clear and present danger." Floyd AbramsFloyd AbramsFloyd Abrams is an American attorney at Cahill Gordon & Reindel. He is an expert on constitutional law, and many arguments in the briefs he has written before the United States Supreme Court have been adopted as United States Constitutional interpretative law as it relates to the First Amendment...
.
Nebraska Press Association v. Stuart
Five years to the day after New York Times Co. v. United StatesNew York Times Co. v. United States
New York Times Co. v. United States, 403 U.S. 713 , was a United States Supreme Court per curiam decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure.President Richard Nixon had...
, the Supreme Court struck down a series of publication restraints that limited the right of the press to publish information about criminal defendants in current cases, such as a confession. Abrams wrote about the topic in his senior thesis at Cornell University
Cornell University
Cornell University is an Ivy League university located in Ithaca, New York, United States. It is a private land-grant university, receiving annual funding from the State of New York for certain educational missions...
. From his opening argument before the Supreme Court:
"For what we would ask of you is nothing less than a renunciation of power, the conclusion by this Court that the Judiciary should not and indeed may not tell the press in advance what news it may print, save only in that rare national security situation, in that rare national security case adverted to by this Court in Near v. Minnesota, and in the Pentagon PapersPentagon PapersThe Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...
case."
Only three members of the Court (Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
, Stewart
Potter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
, and Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
) wanted what Abrams wanted: a bright-line rule banning prior restraint in all cases that involved claims that publication would interfere with the right to a fair trial for the defendant. White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
and Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
indicated that they might go that far in the future and joined Chief Justice Burger's opinion, that left open that possibility.
Background
The FBI was investigating ConnecticutConnecticut
Connecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...
mobster Frank Piccolo
Frank Piccolo
Frank Louis Piccolo was a caporegime in the Gambino crime family in Bridgeport, Connecticut who became involved in a famous extortion case with singer Wayne Newton....
, a caporegime
Caporegime
A caporegime or capodecina, usually shortened to just a capo, is a term used in the Mafia for a high ranking made member of a crime family who heads a "crew" of soldiers and has major social status and influence in the organization...
in the Gambino
Gambino
Gambino is an Italian surname. Notable persons with that surname include:*Carlo Gambino, New York mobster and former boss of the family that takes his name; Gambino crime family*Emanuel Gambino, New York mobster and nephew of Carlo Gambino...
mafia
Mafia
The Mafia is a criminal syndicate that emerged in the mid-nineteenth century in Sicily, Italy. It is a loose association of criminal groups that share a common organizational structure and code of conduct, and whose common enterprise is protection racketeering...
family, who ran loan-sharking and gambling rackets. Piccolo reported weekly in person to Carlo Gambino
Carlo Gambino
"Don" Carlo Gambino, was a Sicilian mafioso who became Boss of the Gambino crime family, that still bears his name today. After the 1957 Apalachin Convention he unexpectedly seized control of the Commission of the American Mafia. Gambino was known for being low-key and secretive...
himself in New York City
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...
. The FBI obtained a warrant to monitor and record Piccolo's conversations for sixty days from May 13 to July 12, 1980. Among those conversations were several with Guido Penosi, a drug dealer who worked with both the Gambino and Lucchese
Tommy Lucchese
Gaetano "Tommy" Lucchese , also known as "Tom Brown" or "Three-Finger Brown", was an American mobster who became the Boss of the Lucchese crime family in New York City...
families. Conversations between the two referenced Wayne Newton
Wayne Newton
Wayne Newton is an American singer and entertainer based in Las Vegas, Nevada. He performed over 30,000 solo shows in Las Vegas over a period of over 40 years, earning him the nicknames The Midnight Idol, Mr. Las Vegas and Mr. Entertainment...
.
By 1965, Newton had become a nationally-recognized entertainer. In the early 1970s he reportedly made sums that exceeded $300,000 a week for his shows. People Magazine called him "the most successful performer in Vegas history" and Newsweek
Newsweek
Newsweek is an American weekly news magazine published in New York City. It is distributed throughout the United States and internationally. It is the second-largest news weekly magazine in the U.S., having trailed Time in circulation and advertising revenue for most of its existence...
said he was "the undisputed king of Las Vegas."
Newton knew Guido Penosi since the 1960s when he performed at the Copacabana Club
Copacabana (nightclub)
The Copacabana is a famous New York City nightclub. Many entertainers, among them Danny Thomas, Pat Cooper and the comedy team of Martin and Lewis, made their debuts at the Copacabana. The 1978 Barry Manilow song "Copacabana" is named after, and is about the nightclub. Part of the 2003 Yerba...
in New York. Penosi warned people at the club to "stay away from the kid" because he's "mine."
Newton and Penosi became close friends, with Newton flying his band to Los Angeles to perform for Penosi's son, without pay. As an ex-felon, the law required Penosi to register with the Las Vegas police if he visited Las Vegas; however, Newton called the police as a favor so Penosi did not need to register.
Newton turned to Penosi for help in 1980. Newton pulled his money out of a Las Vegas tabloid named Backstage, and co-investors demanded Newton pay them money they felt he owed them. A fight broke out between Newton and the two men, and they contacted an organized crime figure to harass Newton and Newton's daughter. The Las Vegas police were unable to stop the threats, so Newton turned to his friend Penosi.
Penosi had Newton call his cousin, Piccolo. At a Genovese family "sitdown" in the Bronx, it was agreed the threats would stop. They did.
Around the same time Newton's business advisor and friend, Mark Moreno, also began receiving threats. Newton sent Moreno to Penosi, who sent him to Piccolo. He was told a sitdown was needed. Moreno himself said he thought that meant he would be "the center of discussion in a room filled with a lot of mob people."
It was agreed Penosi would personally pay $3,500 to end the threats, which they did.
Piccolo then wanted to earn money off the Newton and Moreno favors. He pressured Moreno to buy life insurance for Lola Falana
Lola Falana
Lola Falana is an American singer, dancer, and actress of Cuban and African American descent. Falana's father left Cuba to become a welder in the United States, where he met his wife...
, a Las Vegas entertainer managed by Moreno. Moreno told Newton about the insurance scheme and how he was pressured as a "quid pro quo
Quid pro quo
Quid pro quo most often means a more-or-less equal exchange or substitution of goods or services. English speakers often use the term to mean "a favour for a favour" and the phrases with almost identical meaning include: "give and take", "tit for tat", "this for that", and "you scratch my back,...
, as a favor" for the help Piccolo had given him and Newton.
The Case
NBC broadcast a report in October 1980 entitled "Wayne Newton and the Law" about Newton's purchase of the Aladdin Hotel and Casino, asserting that Penosi and Piccolo had financed the deal in exchange for a hidden share in the hotel. On April 10, 1981, Newton filed a libel claim against NBC. Said Abrams, "Discovery in the case--pretrial depositions, motions, and the like--was brutal."Newton hired lawyer Morton Galane. According to Abrams, as opposing counsel Galane made "each aspect of the proceedings a trial of its own. I have never taken part in a case in which I disliked opposing counsel more or thought he had misbehaved more often." There was no amicable relationship between counsel in this case. Galane reportedly screamed at even the most inconsequential of witnesses, and he charged Abrams with "signaling" Ross, one of the principal defendants. Ira Silverman abruptly stalked out of the court in the middle of testimony because of Galane's tactics.
When Penosi arrived for his deposition, he was open-shirted, with gold chains and dressed "like someone involved in organized crime", wrote Abrams.
Abrams lost in what was then the largest jury verdict against the press in American history.
Newton received $7.9 million for loss of past income and $1,146,750 for loss of future income; $5 million for damages to his reputation; and $225,000 for pain and anguish. The jury also found the journalists Ross and Silverman "harbored ill will or hatred toward [Newton] and intended to injure him" and therefore awarded an extra $5 million in punitive damages. The total was $19,271,750 from the jury, with prejudgment interest of $3,485,523, for a total of $22,757,273.80 entered as judgment by the jury.
"Judge Crocker was stunned by the amount", wrote Abrams.
Crocker later reduced the award to $5.2 million, and the award was finally overturned by the U.S. Ninth Circuit Court of Appeals in August 1990. The court found "almost no evidence of actual malice [in NBC's reporting on Newton], much less clear and convincing proof."
Abrams argued the appeal in front of the United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
on April 13, 1990.
The Heroin Trail
In the Heroin Trail case, Abrams represented New York Newsday. The Long IslandLong Island
Long Island is an island located in the southeast part of the U.S. state of New York, just east of Manhattan. Stretching northeast into the Atlantic Ocean, Long Island contains four counties, two of which are boroughs of New York City , and two of which are mainly suburban...
paper had researched and printed a series of thirty-two articles entitled The Heroin Trail. It was an ambitious project: the publisher and senior editors wanted to follow Heroin trafficking from "the poppy fields of Turkey
Turkey
Turkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...
to the veins of Long Island
Long Island
Long Island is an island located in the southeast part of the U.S. state of New York, just east of Manhattan. Stretching northeast into the Atlantic Ocean, Long Island contains four counties, two of which are boroughs of New York City , and two of which are mainly suburban...
kids."
The series won Newsday a Pulitzer Prize
Pulitzer Prize
The Pulitzer Prize is a U.S. award for achievements in newspaper and online journalism, literature and musical composition. It was established by American publisher Joseph Pulitzer and is administered by Columbia University in New York City...
Gold Medal for public service.
In an exhaustive account published February and March 1973, over three hundred people in Turkey, the United States and Europe were described as heroin traffickers. One man in particular—Mahmut Karaduman
Mahmut Karaduman
Mahmut Karaduman was a Turkish national and the plaintiff in a famous libel case. The Long Island newspaper Newsday wrote a series of thirty-two articles entitled The Heroin Trail, which was awarded the Pulitzer Prize Gold Medal for public service...
, a nightclub owner in Istanbul
Istanbul
Istanbul , historically known as Byzantium and Constantinople , is the largest city of Turkey. Istanbul metropolitan province had 13.26 million people living in it as of December, 2010, which is 18% of Turkey's population and the 3rd largest metropolitan area in Europe after London and...
—was described as specializing in smuggling via a route through the Black Sea
Black Sea
The Black Sea is bounded by Europe, Anatolia and the Caucasus and is ultimately connected to the Atlantic Ocean via the Mediterranean and the Aegean seas and various straits. The Bosphorus strait connects it to the Sea of Marmara, and the strait of the Dardanelles connects that sea to the Aegean...
, dividing his time between villas in Switzerland
Switzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
and Lebanon
Lebanon
Lebanon , officially the Republic of LebanonRepublic of Lebanon is the most common term used by Lebanese government agencies. The term Lebanese Republic, a literal translation of the official Arabic and French names that is not used in today's world. Arabic is the most common language spoken among...
. Of all the people listed, only one person ever filed a lawsuit: Karaduman.
The case languished in the New York courts for years. New York vigorously enforces a law that libel actions must be filed within a year of publication of the story leading to the suit. Karaduman filed too late; he had only learned of the articles in the spring of 1974. In 1980 it was resurrected by the New York State Court of Appeals. The court held that since the New American Library
New American Library
New American Library is an American publisher based in New York, founded in 1948; it produced affordable paperback reprints of classics and scholarly works, as well as popular, pulp, and "hard-boiled" fiction. Non-fiction, original, and hardcopy issues were also produced.Victor Weybright and Kurt...
had republished the article in a book that fell within the 1 year bright-line rule of when the original action was brought, the claim could proceed. But it moved "glacially" until the trial finally began in June and July 1986.
The trial lasted through twenty-four days of testimony, with eleven days translated from Turkish
Turkish language
Turkish is a language spoken as a native language by over 83 million people worldwide, making it the most commonly spoken of the Turkic languages. Its speakers are located predominantly in Turkey and Northern Cyprus with smaller groups in Iraq, Greece, Bulgaria, the Republic of Macedonia, Kosovo,...
. Newsday had not yet called a single witness when two jurors caused a mistrial when they told Justice Kenneth Shorter they could not continue to serve. "It was the stuff of Dickens: A colossal amount of time and money had been wasted with no result other than an order to begin all over again", wrote Abrams.
The aborted trial's transcript helped Abrams learn opposing counsel's strategy, and to master his own.
Newsday had taken pains to ensure their journalists were accurate. Every name on their list of traffickers had been verified with top narcotics agents, including high-ranking Turkish officials. They had notes on everything and all of the reporters came across as competent at trial.
According to Abrams, Newsday had two major problems: 1) the journalists were dependent on their sources (nobody had seen a drug deal take place), which amounts to hearsay
Hearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
; and 2) the journalist's credibility was cast in doubt by some contradictory witness testimony. In the 1986 trial, Karaduman questioned whether the journalists had told the truth. He produced several important Turkish witnesses who would not corroborate their statements to the reporters; indeed, some denied ever meeting them. If this testimony were repeated, it would throw the credibility of the three American journalists into question who the jury believed would be central to winning the case.
Helen Whitney v. Victor Lasky
Helen WhitneyHelen Whitney
Helen Whitney is an award-winning producer for the American Broadcasting Company.She produced a documentary called American Inquisition, which became the subject of a very famous case about First Amendment rights...
was a prize-winning American Broadcasting Company
American Broadcasting Company
The American Broadcasting Company is an American commercial broadcasting television network. Created in 1943 from the former NBC Blue radio network, ABC is owned by The Walt Disney Company and is part of Disney-ABC Television Group. Its first broadcast on television was in 1948...
producer and writer who in 1982 devoted half of a one-hour program (American Inquisition) to the impact McCarthyism
McCarthyism
McCarthyism is the practice of making accusations of disloyalty, subversion, or treason without proper regard for evidence. The term has its origins in the period in the United States known as the Second Red Scare, lasting roughly from the late 1940s to the late 1950s and characterized by...
had on Fairmont
Fairmont, West Virginia
Fairmont is a city in Marion County, West Virginia, United States. Nicknamed "The Friendly City". The population was 18,704 at the 2010 census...
, a small West Virginia
West Virginia
West Virginia is a state in the Appalachian and Southeastern regions of the United States, bordered by Virginia to the southeast, Kentucky to the southwest, Ohio to the northwest, Pennsylvania to the northeast and Maryland to the east...
town. She focused on Luella Mundel
Luella Mundel
Luella Mundel was the subject of a documentary by Helen Whitney called American Inquisition. The program examined how McCarthyism had affected the small town of Fairmont, West Virginia. Victor Lasky, "the rightwing journalist" who rose to prominence in the McCarthy era, sued ABC over his...
, who chaired the art department at Fairmont State College. The narrator said in 1951 Mundel "was not a political activist, but had tastes, convictions about art, about religion, unfamiliar to these streets. And at a local American Legion seminar about subversives, she angrily stood to challenge what was being preached there. Her contract was dropped by the college. A state education official accused her of being a poor security risk. She then sued for slander, but in the trial that followed in Fairmont's courtroom, it was Luella Mundel and her right to speak freely, to be different, that wound up being tried."
"In presenting the case of Luella Mundel, an art teacher at Fairmont College in Fairmont, West Virginia. ABC gave the impression that Victor Lasky had been one of the accusers who had caused her to lose her job. Laskv [sic] was lured into giving ABC News an interview on the pretext that it wanted to talk to him about fighting communism in the 1950s and about the Americanism lectures that he gave for the American Legion. It also wanted to talk about the little people who were caught up in the controversy, such as Luella Mundel, who had been the subject of an article published in Harper's magazine." Accuracy in the Media, June 1983.
According to Accuracy in the Media, Lasky only had a "brief encounter" when he was one of several speakers at the seminar. Mundel criticized the speakers, of which Lasky was one.
Campaign Finance Reform
Many liberalsLiberalism in the United States
Liberalism in the United States is a broad political philosophy centered on the unalienable rights of the individual. The fundamental liberal ideals of freedom of speech, freedom of the press, freedom of religion for all belief systems, and the separation of church and state, right to due process...
were upset at Abrams when he and Kenneth Starr
Kenneth Starr
Kenneth Winston "Ken" Starr is an American lawyer and educational administrator who has also been a federal judge. He is best known for his investigation of figures during the Clinton administration....
successfully challenged the McCain-Feingold campaign-finance-reform as a violation of the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
.
The Washington Post issued the following criticism:
- "Unfortunately, Abrams is far more fair-minded where the argument against a free-speech claim is weak than he is where it's compelling. In the one case that he describes in depth in which the policy interest opposite the free-speech claim was strong enough to prevail -- the campaign-finance case -- Abrams does not do justice to the other side's arguments.... nowhere does he simply and candidly lay out the case for the other side: the explosive growth of "soft money" throughout the last two decades, the ads it funded and the way it eviscerated Congress's early 1970s campaign-finance law. Nor does he describe the voluminous record that his courtroom foes amassed in support of the statute. Indeed, based on his description, the naive reader would have a good deal of trouble understanding exactly what McCain-Feingold required, let alone how any court could have imagined upholding it." The Washington Post's Book World.
Financial Crisis
In September 2009, Floyd Abrams lost a case where he defended Standard & Poor'sStandard & Poor's
Standard & Poor's is a United States-based financial services company. It is a division of The McGraw-Hill Companies that publishes financial research and analysis on stocks and bonds. It is well known for its stock-market indices, the US-based S&P 500, the Australian S&P/ASX 200, the Canadian...
from allegations of fraud in their ratings of sub-prime mortgages. Abrams argued for S&P that, regardless of the financial basis for their ratings, they were protected by the free speech clause of the first amendment. U.S. District Judge Shira Scheindlin
Shira Scheindlin
Shira A. Scheindlin is a United States District Court judge for the Southern District of New York. She was nominated by President Bill Clinton on July 28, 1994, to a seat vacated by Louis J...
ruled that the first amendment did not allow the companies to freely commit fraud because their ratings provided to private investors were not "matters of public concern."